Judge: Malcolm Mackey, Case: 20STCV14617, Date: 2023-09-01 Tentative Ruling


Case Number: 20STCV14617    Hearing Date: September 1, 2023    Dept: 55

CORPRUE v. CITY OF LAWNDALE                                                      20STCV14617

Hearing Date:  9/1/23,  Dept. 55

#8:   

DEMURRER TO THIRD AMENDED COMPLAINT.

MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT.

 

Notice:  Okay

Opposition

 

MP:  Defendants

RP:  Plaintiff

 

 

Summary

 

On 4/15/20, Plaintiff RODERICK CORPRUE filed a Complaint.

On 1/11/23, pursuant to an order allowing leave to amend, Plaintiff filed a Third Amended Complaint, to add claims and theories arising since Plaintiff filed this action, including constructive employment termination, and alleging that Plaintiff worked as a maintenance worker, and employer Defendant City of Lawndale intentionally assigned Plaintiff to do work that violated his medical restrictions, and refused to offer available, reasonable work accommodations, based upon discrimination and retaliation.

The causes of action of the Third Amended Complaint are:

1. VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT – DISCRIMINATION BASED ON RACE, AGE, AND DISABILITY/PERCEIVED

DISABILITY;

2. VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT – HARASSMENT BASED ON RACE, AGE, AND DISABILITY/PERCEIVED DISABILITY;

3. VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT – RETALIATION;

4. VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING – FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS;

5. VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING – FAILURE TO ACCOMMODATE;

6. VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING – FAILURE TO PREVENT/INVESTIGATE;

7. VIOLATION OF LABOR CODE SECTION 1102.5;

8. VIOLATION OF THE CALIFORNIA FAMILY RIGHTS ACT; and

9. DEFAMATION.

 

 

MP Positions

 

Moving parties request an order sustaining the demurrer, and granting the motion to strike, as to the Third Amended Complaint, on grounds including the following:

 

·         All allegations relating to time-barred and dismissed claims are subject to demurrer, and should be stricken from the TAC.

·         The pleading improperly realleges causes of action and claims that were dismissed pursuant to the Court’s June 23, 2023 ruling on Defendants’ Motion for Summary Judgment or in the alternative Summary Adjudication of Issues, which resulted in dismissal from Plaintiff’s Second Amended Complaint of (a) all claims of alleged FEHA violations based on Plaintiff’s age and race, which were alleged to have arisen from conduct prior to March 20, 2019, and (b) the seventh through ninth causes of action for, respectively, violations of Labor Code Section 1102.5 and the California Family Rights Act and for defamation.

·         The same analyses apply to the allegations of the Third Amended Complaint.

·         Although Plaintiff purports to allege a new claim of race-based discrimination occurring since the last pleading was filed [TAC ¶¶ 28, 33], these new allegations are too sparse and conclusory to comprise a claim of discrimination based on race under the FEHA, and (in accord with the Court’s MSA ruling) cannot be deemed a continuing violations based on any earlier alleged conduct outside the FEHA limitations period.

·         The only FEHA claims the prior Court allowed to proceed were those that arose from conduct after March 2019 and related solely to Plaintiff’s asserted disability or perceived disability.

·         The Court dismissed the seventh Cause of Action for violation of Labor Code § 1102.5 based on purported retaliation against Plaintiff for protected “whistleblower” activities, because Plaintiff failed to raise this claim in a timely government tort claim and also failed to identify any protected whistleblower activity.

·         The Court dismissed the eighth Cause of Action for violation of the CFRA as time-barred, because the claim was not filed within one year of the alleged 2017 violation.

·         The Court dismissed the ninth Cause of Action for defamation because Plaintiff had failed to allege the bases for this claim in a timely government tort claim, and also because the Court found that the statements alleged in support of the claim were mere opinion, rather than statements of fact, and were subject to the common interest privilege.

 

RP Positions

 

Opposing party advocates overruling and denying, for reasons including the following:

 

·         Defendants have knowledge of their continuing FEHA violations occurring during this case, including additional acts of discrimination and retaliation, refusing to accommodate lesser medical restrictions than previously accommodated and constructively terminating his employment.

·         The new FEHA violations revive the 1st cause of action for race and age discrimination in violation of FEHA, including the constructive discharge; 3rd cause of action for retaliation in violation of FEHA, including the constructive discharge based on retaliation stemming from filing this action;  and 6th cause of action for failure to prevent and/or correct in violation of FEHA, including allowing the constructive discharge.

·         Plaintiff does not seek to revive 1) the 7th cause of action for Violation of the Labor Code § 1102.5, 2) the 8th cause of action for Violation of the California Family Rights Act, or 3) the 9th cause of action for Defamation.  Plaintiff left them in the complaint to ensure that he does not waive his right to appeal the dismissal of those counts.

·         Plaintiff timely filed a new complaint with the California Department of Fair Employment and Housing (“DFEH”) on October 11, 2022, which alleged ongoing and continuing FEHA violations which include discrimination, retaliation, failure to accommodate, failure to engage in the interactive process as well as failure to correct and/or investigate FEHA allegations. The same day, the DFEH issued Plaintiff a right-to-sue letter.

·         The motion to strike improperly duplicates the demurrer, by attacking entire causes of action.

 

 

Tentative Ruling

The demurrer is overruled.

The motion is denied.

Twenty days to answer.

Parties may reallege summarily adjudicated claims in each amended complaint, in order to avoid waivers of raising issues on appeal.  Burch v. Sup. Ct. (2014) 223 Cal. App. 4th 1411, 1417), disapproved on other grounds by McMillin Albany LLC v. Sup. Ct. (2018) 4 Cal. 5th 241. 

The effect of realleged allegations is a separate issue, possibly for trial.  “Following a grant of summary adjudication in a defendant's favor, the cause of action is deemed ‘established’ and the parties may not relitigate the issue.”  Pinter-Brown v. Regents of Univ. of California (2020) 48 Cal. App. 5th 55, 99.  But cf. Haskel, Inc. v. Superior Ct. (1995) 33 Cal. App. 4th 963, 977–78  (“While an insured may obtain an early summary adjudication of a defense obligation, the insurer is entitled to seek a contrary ruling at any time it acquires the requisite evidence to conclusively eliminate any potential for coverage.”);  California Insurance Law Handbook § 46:118. Leave to amend a complaint should be allowed where summary adjudication was a challenge to the sufficiency of the pleading.  Kirby v. Albert D. Seeno Constr. Co. (1992) 11 Cal. App. 4th 1059, 1067.   See also generally Cal. Prac. Guide Civ. Pro. Before Trial  (The Rutter Group 2023)  § 10:347  (motion for relief from summary adjudication possible).

Where continuing violations are asserted, "a complaint arising under FEHA is timely if any of the discriminatory practices continues into the limitations period."  Accardi v. Sup. Ct. (1993) 17 Cal.App.4th 341, 349, disapproved on other grounds by  Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 816-823. 

Also, an employee’s subsequent administrative charge for acts occurring after the filing of the first claim, has been considered proper.  Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345, 382.  Allegations to the effect that the complainant has timely filed a complaint with the Department of Fair Employment and Housing, constitutes sufficient pleading of exhaustion, as to FEHA claims. Williams v. Housing Authority of City of Los Angeles (2004) 121 Cal.App.4th 708, 721.

Modernly, in pleading FEHA causes of action, plaintiffs are only required to set forth the essential facts sufficiently to acquaint defendants with the cause of action.  Alch v. Sup. Ct. (2004) 122 Cal.App.4th 339, 382-83 ("They further allege the employers have hired statistically significant lower numbers of older writers than would be expected given the relevant qualified applicant pool, and these disparities increase in direct relationship to age. They also describe anecdotal evidence of intentional discrimination. We discern no missing statutory element in these allegations.").  “[T]he complaint must include the prima facie elements of employment discrimination….”  Caldwell v. Paramount Unif. Sch. Dist. (1995) 41 Cal.App.4th 189, 202 n. 7.

Finally, a motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure.  Ferraro v. Camarlinghi (2008)  161 Cal.App.4th 509, 528-29.